# Deo Narain Yadav (In Jail) v. State of U.P

- **Citation:** (2021) 9 ILRA 597
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-09
- **Case number:** Criminal Appeal No. 84 of 1983
- **Bench:** Anjani Kumar Mishra, Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deo-narain-yadav-in-jail-v-state-of-u-p-47452
- **Pages:** 11

## Headnote

Law
-
appeal
against
conviction - Indian Penal Code, 1860 -
Section 302 - The Code of criminal
procedure, 1973 - Section 313 - Indian
Evidence Act, 1872 - section 8 - oral
testimony
of
a
witness
cannot
be
discarded simply on the ground that he is
interested witness or inimical or chance
witness - What is required is cautious
approach in scrutiny and appreciation of
his
testimony
-
where
eye-witness
account is produced motive looses its
significance.(Para -9,16 )

Agricultural
plots
of
deceased
and
(accused/appellant) are adjacent - enmity
between
them
regarding
dismantling
of
boundary (mend) - co - villager (PW-2) asked
accused not to quarrel - accused advanced
ahead, PW-2 caught hold of him but accused
jerked him, and PW-2 fell down - accused fired
gun shot at deceased - hit his head and skull
blown off - fell down and died on the spot - son
of deceased also Informant (PW-1) - lodged
F.I.R. - trial court convicting the appellant (
accused) under section 302 and sentencing him
to life imprisonment - hence appeal.
598 INDIAN LAW REPORTS ALLAHABAD SERIES
HELD:-Two witnesses(PW-1 & PW-2) examined
by the prosecution as eye-witness are not
reliable, their presence on the spot at the time
of occurrence and their seeing of occurrence is
highly doubtful. Time of the occurrence is also
doubtful and the possibility cannot be ruled out
that occurrence may have taken place after the
sunset in the darkness. Two prosecution
witnesses being interested and inimical and also
chance witnesses lack, the credibility and cannot
be relied. Shadows of doubts on the prosecution
evidence and from the appreciation of evidence
and entire material on record, it is clear that
case of the prosecution is not stand proved
beyond reasonable doubt. So it will be just and
proper to give the benefit of doubt to the
accused.(Para - 19)

Criminal Appeal allowed. (E-7)

## Text

9 All Deo Narain Yadav Vs. State of U.P.
597
parties to fill up the vacancies in the cadre
of Workshop Hand occurring prior to the
promulgation of Rules, 2016 in accordance
with the provisions of Rules, 2015. Since
the qualifications so prescribed under the
Amended Rules, 2016 are the same as were
prescribed under the very first Rules i.e.
Rules, 1982 and the qualification so
inserted by means of Rules, 2015 on
28.9.2015
remained
in
force
till
19.10.2016, however, vide Amended Rules,
2016 the qualifications indicated under
such Rules i.e. Rules, 2016 are not ousting
the petitioners from the consideration zone
of promotion on the post of Workshop
Hand and such Rules, 2016 are governing
the field for all practical purposes,
therefore, the opposite parties are directed
to make promotion on the post of
Workshop Hand identifying entire existing
vacancies
in
the
promotional
quota
completing such exercise with expedition,
preferably within a period of three months
thereby promoting all suitable candidates
from Class-IV post to the post of Workshop
Hand strictly in accordance with Rules,
2016. The interim orders, if any, in these
writ petitions would be treated to have been
merged in this order.

35. So far as the prayer in both the
writ petitions that vacancies occurring prior
to the year 2016 should be filled up on the
basis of unamended Rules, 2015 is hereby
rejected. However, all the vacancies of
Workshop Hand lying vacant in the
Department as on today shall be filled up
strictly as per the directions made herein
above within time so stipulated.

36. In the aforesaid terms, both the
writ petitions are disposed of.
----------
(2021)09ILR A597
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.09.2021

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Appeal No. 84 of 1983

Deo Narain Yadav ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri S.K. Singh, Sri A.K. Srivastava, Sri Apul
Misra, Sri H.K. Yadav, Sri M.N. Tiwari, Sri
P.C. Srivastava, Sri P.N. Misra, Sri Rahul
Misra, Sri S.kumar, Sri V.M. Zaidi

Counsel for the Opposite Party:
D.G.A.

(A)
Criminal
Law
-
appeal
against
conviction - Indian Penal Code, 1860 -
Section 302 - The Code of criminal
procedure, 1973 - Section 313 - Indian
Evidence Act, 1872 - section 8 - oral
testimony
of
a
witness
cannot
be
discarded simply on the ground that he is
interested witness or inimical or chance
witness - What is required is cautious
approach in scrutiny and appreciation of
his
testimony
-
where
eye-witness
account is produced motive looses its
significance.(Para -9,16 )

Agricultural
plots
of
deceased
and
(accused/appellant) are adjacent - enmity
between
them
regarding
dismantling
of
boundary (mend) - co - villager (PW-2) asked
accused not to quarrel - accused advanced
ahead, PW-2 caught hold of him but accused
jerked him, and PW-2 fell down - accused fired
gun shot at deceased - hit his head and skull
blown off - fell down and died on the spot - son
of deceased also Informant (PW-1) - lodged
F.I.R. - trial court convicting the appellant (
accused) under section 302 and sentencing him
to life imprisonment - hence appeal.
598 INDIAN LAW REPORTS ALLAHABAD SERIES
HELD:-Two witnesses(PW-1 & PW-2) examined
by the prosecution as eye-witness are not
reliable, their presence on the spot at the time
of occurrence and their seeing of occurrence is
highly doubtful. Time of the occurrence is also
doubtful and the possibility cannot be ruled out
that occurrence may have taken place after the
sunset in the darkness. Two prosecution
witnesses being interested and inimical and also
chance witnesses lack, the credibility and cannot
be relied. Shadows of doubts on the prosecution
evidence and from the appreciation of evidence
and entire material on record, it is clear that
case of the prosecution is not stand proved
beyond reasonable doubt. So it will be just and
proper to give the benefit of doubt to the
accused.(Para - 19)

Criminal Appeal allowed. (E-7)

(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)

1. Heard learned counsel for the
appellant and learned A.G.A. for the State
and perused the material on record.

2. This criminal appeal arises out of
judgment and order dated 25.11.1982
passed by the Vth Additional & Sessions
Judge, Allahabad in Special Case No.166
of 1982, Case Crime No.12 of 1982, under
Section
302
I.P.C.,
Police
Station-
Nawabganj, District- Allahabad, convicting
the appellant (accused) under Section 302
I.P.C.
and
sentencing
him
to
life
imprisonment.

3. The prosecution case is that
complainant Rajendra Prasad Yadav gave
an application dated 27.01.1982 at Police
Station-Nawabganj,
District-
Allahabad
alleging therein that he is resident of village
Rajapur
Mazara
Awanikapura.
The
agricultural plot of applicant and Deo
Narain Yadav resident of Rajapur Chaubara
Mazara Awanikapura are adjacent and
there is enmity between them regarding
dismantling of boundary (mend). On
26.01.1982 at about 04 p.m. his father
Rameshwar @ Bachai went to the house of
Paras Nath to take money. After some time
he (Rajendra Prasad) went to call his father
where he saw that Deo Narain Yadav
armed with his licensed gun was abusing
his father and saying that you will not
simply settle the dispute of dismantling the
boundary (mend) and today you have met
me on opportune moment, you will be
killed and not spared. On this, my father
forbidden him to abuse which further
enraged Deo Narain Yadav. Meanwhile,
co-villager Kishori Lal asked Deo Narain
Yadav not to quarrel. Deo Narain Yadav
advanced ahead, Kishori Lal caught hold of
him but Deo Narain Yadav jerked him, and
Kishori Lal fell down. Then, Deo Narain
Yadav due to aforesaid enmity with
intention to kill his father fired a gun shot
at Rameshwar Prasad on his head, some
portion of skull of my father's blow off and
brain material came out and my father died
on the spot. On hearing noises witness
Kallu from southern side and many other
co-villagers making exhortation reached
the spot. Accused Deo Narain Yadav
threatening all of them with death ran away
towards East. Due to extreme cold, rain,
darkness and due to fear, I have come to
the police station today morning with covillagers for giving information written by
Doodhnath. The dead body of my father on
the spot is being guarded by village
Chowkidar Mahrani Din.

4.

On
the
aforesaid
written
information Case Crime No.12 of 1982
under Section 302 I.P.C. was registered at
Police
Station-
Nawabganj,
District
Allahabad on 27.01.1982 at 08:40 a.m. and
the
investigation
commenced.
The
investigating
officer,
S.I.
Nasiruddin
9 All Deo Narain Yadav Vs. State of U.P.
599
reached at the spot prepared inquest report
and sent the body for post-mortem
examination, interrogated the witnesses,
inspected the place of occurrence, prepared
the site plan, took sample of blood-stained
soil and plain soil and sealed it in separate
containers
and
prepared
its
memo,
interrogated other witnesses including eyewitness
and
after
completion
of
investigation submitted the charge-sheet
against the accused Deo Narain Yadav
under Section 302 I.P.C.

5. The learned trial Court framed
charge against the accused Deo Narain
Yadav under Section 302 I.P.C. The
accused denied it and claimed for trial.
Prosecution
examined
five
witnesses.
Statement of accused Deo Narain Yadav
was recorded under Section 313 Cr.P.C. in
which, he alleged that he has been falsely
implicated at the instance of Paras Nath,
Kishori Lal, Kedar Nath. Paras Nath is of
the party of Kishori Lal. He has also stated
that he appeared as a witness against
Kishori Lal. Rajendra Prasad (complainant
PW-1) is under the influence of Kishori
Lal. He has further stated that he had no
enmity with Rameshwar Prasad (deceased).
Paras Nath and Data Deen have filed a case
in respect of Plot No.73 against Ram
Swaroop (father of the accused) under
Section 115 C which he lost from the Court
of Tehsildar as well as from the Court of
Commissioner and even from the Civil
Court. He has further stated that on
26.06.1979, Paras Nath, Shambhoo Nath
and Gopi Nath sons of Nanhku and Ram
Saran son of Raghunandan (uncle of Paras
Nath) assaulted him for which he lodged a
report. He filed a copy of chitthi mazroobi
of that incident. He further stated that on
14.10.1977 Kedhar Nath son of Shukru and
Chhedi Lal son of Sher Ali resident of
Rampur Chaubara murdered his brother
Sampat who was a guard in R.P.F. and he
lodged a report with the police, a carbon
copy thereof he has filed. He has further
stated that at the time of incident, he was
not present at his house and no such quarrel
as alleged has taken place.

No oral evidence in defence
produced by the accused. The learned trial
Court after hearing the arguments by
impugned judgment has convicted the
accused (Appellant) for charge under
Section 302 I.P.C. and sentenced him for
life imprisonment.

6. The post-mortem of the deceased
was conducted on 28.01.1982 at 02.40 p.m.
by Doctor P.L. Nigam PW-4 and according
to which on external examination, the rigor
mortis has passed off from the upper
portion of the body but was present in the
lower limbs. Mud was found sticking on
both the legs and on the left thigh, blood
was accumulated on the left side of the face
and chin. Following ante-mortem injuries
were found on the body.

One gun shot wound 7.5"x6" x
brain cavity deep starting from the right
side of the tip of nose going upwards and
laterally crossing whole of the body of
nose, left side of the forehead going
upwards upto the middle of the vault of
scalp. The posterior end of the wound was
placed 3" above pinna of left ear. The scalp
bones were broken into innumerable pieces
of varying sizes. Whole of the brain matter
including meningia were missing from the
cavity except both the lobes of cerebelum
and a part of the base of brain. One piece of
flattened fire-arm pellet, irregular in shape
was recovered from the posterior part of the
brain cavity. The margins of the wound of
nose were inverted and it appeared to be
woud of entry and the posterior part over
600 INDIAN LAW REPORTS ALLAHABAD SERIES
the vault of the scalp, the margins of the
wounds are everted. It shows that the
wound of entry is on the anterior part of the
wound and the wound of exit at its
posterior part.

On
internal
examination
Dr.
Nigam found that the skull bone was
broken into pieces and the membrane of the
brain were lacerated and the brain was
missing as mentioned in injury no.1

In the opinion of the Dr. P.L.
Nigam (PW-4) the cause of death was
shock and hemorrhage on account of antemortem injury and duration of death was
two days from time of post-mortem. The
pellet recovered from the body was sealed
in an envelop and sent to the police. Dr.
P.L. Nigam PW-4 in his examination-inchief has also stated that the death of
Rameshwar Prasad could have been caused
on 26.01.1982 at about 04 p.m. and injury
no.1 in the ordinary course was sufficient
to cause his death and the injury could have
been caused with the gun shot.

7. Learned counsel for the appellant
contended that the injury of the deceased
could not be caused by a 12 bore gun. The
dimension of the wound is 7.5"x6" and it
has blown the skull. The wound is blast
wound and greater probability is that it has
been caused with a high velocity weapon
like rifle. Its impact is great and consequent
damage is much, hence medical evidence
does not corroborate the oral testimony.
Learned A.G.A., on the other hand,
contended that injury depends on the
cartridge used in the weapon, if a single
ball cartridge is used the injury of such a
nature can be caused and there is no
contradiction between the medical evidence
and ocular testimony. The post-mortem
report indicates that a shot has been fired
from the front which has hit the upper
portion of the face from nose to the skull on
the left side and due to this skull bone was
broken into pieces and the brain matter was
missing from the cavity. One piece of
flattened firearm pellet irregular in shape
was recovered from the posterior part of the
brain cavity. The margins of the wound of
the nose were inverted and it appeared to
be a wound of entry and posterior part over
the vault of the scalp the margins of the
wound are everted. It shows that the wound
of entry is on the interior part of the wound
and the wound of exit at its posterior part.
A bullet fired by a rifle due to its velocity
passes out of the body making an aperture
of entry and exit. In the instance case, the
position is not the same but it is a single
wound suggesting that the shot must have
been fired from a close range but more than
3 feet. In such a situation the injury of such
a nature can be caused from 12 bore gun.
So it cannot be said that the injury received
may not have been caused by a 12 bore
gun.

8. The prosecution case is based on
direct evidence and two eye-witnesses.
PW-1 Rajendra Prasad and PW-2 Kishori
Lal have been produced by the prosecution.
Rajendra Prasad is son of the deceased and
also the informant. In his examination-inchief this witness has said that deceased
Rameshwar @ Bachai was his father and
accused Deo Narain Yadav is the resident
of his own village. The agricultural plots of
Rameshwar Prasad (deceased) and accused
Deo Narain Yadav are adjacent. Sometimes
his father used to plough a portion of the
field of the accused and some times the
accused used to plough some area of his
plot dismantling the boundary (mend) and
on account of that Deo Narain Yadav used
to bear grudge against the deceased
Rameshwar Prasad. The house of Deo
9 All Deo Narain Yadav Vs. State of U.P.
601
Narain Yadav is 200 paces away in the
south of his house. He further stated that
his father was murdered about 9 months
ago at 4 p.m. His father has gone to the
house of Paras Nath to take money, when
there was delay in his return he went to call
him. He further stated that his father was
standing between baithaka of Paras Nath
and Deo Narain Yadav's fodder cutting
machine. Deo Narain Yadav was standing
near his house armed with a gun. Deo
Narain Yadav was asking his father to
settle the dispute of the boundary (mend)
soon otherwise he will be killed as he has
met
him
on
opportune
moment.
Meanwhile, Kishori Lal arrived there and
asked Deo Narain Yadav not to quarrel.
Deo Narain Yadav advanced ahead then
Kishori Lal caught hold of him but Deo
Narain Yadav pushed him and Deo Narain
Yadav after advancing ahead fired a gun
shot at Rameshwar Prasad which hit his
head and his skull blown off and he fell
down and died on the spot. Rajendra Prasad
and Kishori Lal made a noise then Kallu
came there. Deo Narain Yadav extending
threats that if anybody would try to
advance, will be killed, escaped from there.
Soon after the incident his mother came
there. The witness has further stated that in
the evening and in the night he could not go
to the police station to lodge a report as it
was raining and cold and also due to fear.
In the night he kept on watching the dead
body and on the next morning he got the
report scribed by Doodh Nath a teacher and
accompanied with Paras Nath and Ram
Kailash went to police station to lodge the
report. On spot the blood which oozed out
from the injury of Rameshwar Prasad was
fallen on the ground.

Kishori Lal PW-2 is an eyewitness. In his examination-in-chief he has
stated
that
Rameshwar
Prasad
was
murdered 9 months earlier. At abut 4 p.m.
he was at home when he heard hue and cry
of the quarrel he reached at the place of
occurrence the house of Paras Nath and
fodder cutter machine of Deo Narain
Yadav there he saw Rameshwar and his son
Rajendra Prasad and Deo Narain Yadav
there. Deo Narain Yadav was armed with a
licensed gun. Some altercation was going
on between Deo Narain Yadav and
Rameshwar Prasad. He tried to pacify and
also tried to caught hold Deo Narain Yadav
but he pushed him and fired a gun shot at
Rameshwar Prasad which hit the head of
the Rameshwar Prasad and his skull blown
off. Rameshwar fell down and died. On
this, Kishori Lal PW-2 and son of
Rameshwar Prasad made a noise then Kallu
came there. Thereafter, accused Deo Narain
Yadav escaped towards east extending
threats.

9. Learned counsel for the appellant
contended that Rajendra Prasad PW-1 is
the son of deceased and interested witness
while Kishori Lal PW-2 is inimical witness
and
both
the
witnesses
are
chance
witnesses, their presence on the spot is
highly doubtful and their testimony cannot
be relied on. It is settled principle of law
that oral testimony of a witness cannot be
discarded simply on the ground that he is
interested witness or inimical or chance
witness. What is required is cautious
approach in scrutiny and appreciation of his
testimony.

10. It is clear from the evidence that
the distance between the house of the
complainant and the place of occurrence is
near about 200 paces and according to
prosecution case the complainant reached
at the place of occurrence to look his father
who has gone to take money from house of
Paras Nath and there was delay in his
602 INDIAN LAW REPORTS ALLAHABAD SERIES
return. It is not the prosecution version that
the complainant was accompanying his father
when he went to the house of Paras Nath.
Rajendra Prasad PW-1 has stated in his cross
examination that Paras Nath was not present
in his house at the time of murder. As
Rameshwar (deceased) has gone to the house
of Paras Nath to take money and Paras Nath
was not present in his house at that time so
there was no occasion for delay in return of
Rameshwar which is the reason assigned for
presence of Rajendra Prasad PW-1 at the
place of occurrence at the time of incident.
Regarding presence of Kishori Lal PW-2 at
the place of occurrence, it is in the evidence
that Kishori Lal reached there on hearing the
noises of quarrel. It is admitted by Kishori
Lal PW-2 that he was at his home and when
he heard the noises of quarrel he reached on
the spot. The evidence on record also
establishes that house of Kishori Lal is in the
north-east of pond, 50-60 paces away from
the place of occurrence and there are houses
of several other persons near his house.
Kishori Lal PW-2 in his cross examination
has said that dead body was lying 5-6 paces
from the house of Deo Narain Yadav in
which there is a boring machine. The houses
of Jeet Lal, Bindeshwari, Jawahar and Suraj
Deen are 50-60 paces from the dead body. He
has further stated that his house is in the east
of Suraj Deen and in the north of the house of
Jeet Lal. So there are several other houses
near the house of Kishori Lal which are
nearer to the place of occurrence than that of
Kishori Lal. Rajendar Prasad PW-1 has also
said in his cross examination that there are
houses of Jeet Lal, Suraj Deen, Bindeshwari,
Raja and others near the pond and none of
them is the witness of the incident, only
Kishori Lal has been named as witness.

It is also in the statement of
Rajendra Prasad PW-1 that there are 2-3
houses in the south of Paras Nath and an
Abadi Pasiyana in the west of the house of
Ram Saran Yadav. So it is also established
that there are houses and Abadi in northeast as well as north-west and west
directions of the place of occurrence but
none of resident of these houses are alleged
to have come at the place of occurrence
hearing the noises of quarrel. It is in the
statement of Rajendra Prasad PW-1 that
when he reached to the spot Deo Narain
Yadav was saying to his father to settle the
dispute of the boundary (mend) soon
otherwise he will be killed as he has met on
opportune moment. Thereafter Kishori Lal
tried to pacify but Deo Narain Yadav shot
the gun fire. This indicates that whole
incident has occurred in a very short span
of time. It does not show that the
altercation was so loud that it may attract
persons residing 50-60 paces away from
the
place
of
occurrence.
In
these
circumstances, the presence of witness
Kishori Lal at the time and place of
occurrence becomes doubtful. The absence
of any other witness of the vicinity or
nearby locality further confirms this. Apart
from Kishori Lal another witness named in
the F.I.R. is Kallu and from the evidence, it
is also established that Kallu was an
accused in a criminal case in which Kishori
Lal was a witness and Kishori Lal filed
affidavit in favour of Kallu. So Kallu and
Kishori Lal are friendly and all of them are
in league with one another. It also indicates
that intentionally and after giving a
thoughtful consideration, the choice of
witnesses have been made and only two
persons
who
are
favourable
to
the
complainant have been named in the F.I.R.
as witness. It is also in the statement of
Kishori Lal PW-2 that at the time of
incident it was raining and neither he nor
Rameshwar nor Rajendra Prasad was
holding
any umbrella.
This
is
also
unnatural.
9 All Deo Narain Yadav Vs. State of U.P.
603

11. Although, Kishori Lal has tried to
conceal the facts about enmity and matters
related to it and have given evasive replies
to the questions asked in cross examination
on these points and have shown ignorance
about certain facts which are supposed to
be his knowledge but from his cross
examination it is fully established that he
was an accused in a case under Sections
107 and 117 Cr.P.C. in which the accused
was second party and he has said that in
that case he was falsely implicated by
accused Deo Narain Yadav. He has also
admitted that Sampat (brother of the
accused) was murdered and he was
excommunicated and still his community
members have no relations with him.
Considering all the aforesaid facts and in
the absence of no other independent and
nereby resident named in the F.I.R. as
witness the presence of witness Rajendra
Prasad PW-1 and Kishori Lal PW-2 who
are interested, inimical and chance witness
becomes doubtful.

12.

There
are
some
other
contradictions and discrepancies in the
statements of the witnesses. Rajendra
Prasad PW-1 in his cross-examination has
said that when his father was shot he was 45 paces East from his father. He has further
said that he has indicated this place to the
Investigating
Officer
when
he
was
preparing the site plan but in the site plan,
the position of complainant Rajendra
Prasad has been shown in the Northwest
direction from his father. He has further
said that Kishori Lal witness was 1-2 paces
east from Deo Narain and he has shown
this place to the investigating officer but in
the site plan, the place where Kishori Lal
was present is shown to the west from the
deceased. Kishori Lal PW-2 has also said
that there is one hand-pump in the North of
the house of Bachai and when shot was
fired he was 2 paces to this hand-pump and
Rajendra the son of Rameshwar was 3
paces in the north, this statement is also
against the site plan because in the site plan
the hand-pump has been shown in the
extreme north of the house of Paras Nath
much away from the place of occurrence
while the presence of accused, deceased,
and the witnesses has been shown in the
south-east direction of the House of Paras
Nath. Rajendra Prasad PW-1 has told the
presence of only Kishori Lal and Kallu on
the spot during the occurrence and soon
thereafter. While Kishori Lal PW-2 in his
cross examination has said that on hearing
the noises and sound of fire Kallu and
many others came to the spot making
exhortations. He has further said that other
persons came after 10 minutes after the
arrival of Kallu and 5 minutes thereafter
Deo Narain Yadav ran away. Many persons
exhorted then Deo Narain Yadav ran away.
The persons who came included men,
women and children of the village. There is
no such description in the statement of
Rajendra Prasad PW-1 and he has not said
anything about the presence of any other
person except Kishori Lal and Kallu,
Rajendra Prasad PW-1 has also said that
the whole night the only source of light was
of the lantern. The lantern was kept there in
open near the dead body whole night.
While from the evidence on record it
appears that it was raining at the time of
occurrence and also the whole night. So,
this statement also cannot be believed.
Rajendra Prasad PW-1 in his cross
examination has also said that witnesses
Kishori Lal or Kallu did not stay there on
the spot in the night. They went to their
homes after seeing the incident and did not
come back to the spot. This is unnatural
conduct. Further on this point, Kishori Lal
has said that he remained at the spot till 8
p.m. and when the Chowkidar came there
604 INDIAN LAW REPORTS ALLAHABAD SERIES
then he returned to his home. The aforesaid
discrepancies and contradictions are major
and affects the reliability of the witnesses.

13. There is a specific allegation in
the F.I.R. that Deo Narain Yadav was
armed with his licensed gun and he used
this weapon in the crime. Although, it was
a licensed gun it has not been recovered
and sent for Forensic examination. The
Investigating Officer has not made any
effort for the recovery of the weapon used
in the offence while it may be a good piece
of evidence to support the prosecution and
this
will
certainly
go
against
the
prosecution.

14. The learned counsel for the
appellant further contended that according
to the prosecution version the occurrence
has taken place at 26.01.1982 at 4 p.m. and
the F.I.R. was lodged on 27.01.1982 while
in the normal course the F.I.R. could have
been lodged within 2-3 hours and it appears
that occurrence might have taken place
sometime in the night and that is why the
report was lodged in the morning of the
next day. The learned A.G.A. contended
that the reason for the delay in lodging the
F.I.R. has been reasonably explained.
Rajendra Prasad PW-1 has stated that he
did not go to the Police Station to lodge the
report in the evening or in the night
because it was raining and the weather was
really cold and also due to fear. The
explanation given by the prosecution
appears to be plausible but the material on
record indicates that it creates serious doubt
about timing of the occurrence. The
incident is of the last week of the January
in which sunset occurs after 5 p.m. and the
incident is said to have occurred at 4 p.m.
so there was more than an hour before it
became dark. But the statement of the
witnesses show that lodging of the F.I.R.
was not considered at all just after the
occurrence in the evening. Kishori Lal PW2 has said that till he was at the place of
occurrence there was no mention of the
lodging of the F.I.R. and at another place,
he has said that he remained at the place of
the occurrence till 8 p.m.. Rajendra Prasad
PW-1 has also said that at 6:30 a.m. next
morning writing of the report was started
and it was then decided to lodge the F.I.R..
In the evening, when Ram Kailash came
neither report was written nor it was
considered to go to the police station to
lodge the F.I.R.. However, it is normal
human behaviour to inform the police to
lodge the F.I.R. soon after such type of
occurrence but it appears that neither any
effort was made nor it was considered to
lodge the F.I.R. soon after the incident.
From the statement of the witnesses, it is
also established that village Chowkidar and
other persons have come to the spot after
darkness. Rajendra Prasad PW-1 in his
cross examination has said that "village
Chowkidar came to the the spot after 2-3
hours when called. Chowkidar lives in
Pasiyana. I have gone to call him. He has
further stated that I have seen Paras Nath
on the spot after arrival of Chowkidar." On
another place in his cross examination, he
has said that he saw Ram Kailash in the
evening at his house when he went to call
Chowkidar. When he saw Ram Kailash the
sun was already set and lantern were lit.
While Kishori Lal PW-2 has said that he
remained on the spot till 8:00 p.m. and
when Chowkidar came on the spot then he
went to his house. It is clear from the
material on record that the place of
occurrence is inside the village Abadi and
there are several houses nearby and village
Chowkidar lives in Abadi called Pasiyana.
The arrival of village Chowkidar and other
person at place of occurrence after the
darkness
clearly
indicates
that
the
9 All Deo Narain Yadav Vs. State of U.P.
605
occurrence as alleged by the prosecution is
not of 4:00 p.m. but after the sunset and
that may be the reason that F.I.R. could not
be lodged same day. Rajendra Prasad PW-1
has said in his cross examination that "I
have said to Chowkidar to lodge the F.I.R.
at the police station as soon as he came to
the spot but there is no explanation why
Chowkidar not lodged the F.I.R. or what
reply he gave to the complainant." It is also
in
the
statement
that
Parasnath
is
intermediate and at the time of occurrence
he was in class 8th and that when
Chowkidar came to the spot till then ExKa-1 was not written. This also indicates
that because of sunset, darkness has
prevailed due to which no one tried to
report the incident at the police station. Not
lodging the F.I.R. in the evening and even
no effort made to inform the police creates
serious doubt about the time of occurrence
and the possibility that occurrence has
taken place after the sunset, cannot be ruled
out. So in this case delay in lodging, the
F.I.R. seriously doubts the time of the
incident
and
adversely
affects
the
prosecution case and also the reliability of
eye-witnesses.

15. Learned counsel for the appellant
contended that the place of occurrence is
also doubtful as no pellets, Tikli, or any
other sign of firing has been found on the
spot. He further contended that according
to the prosecution version the skull of the
deceased was broken and the part of the
brain came out lying on the ground but the
same has not been taken into possession by
the investigating officer and sent for postmortem examination with the dead body.
Learned
A.G.A.
contended
that
the
deceased has died instant death due to head
injury. The investigating officer has taken
blood-stained and unstained soil from the
spot and its chemical examination report
confirms human blood in it. The statement
of the witnesses are consistent on this point
and there is no ground to make any doubt
about the place of occurrence. It is true that
the part of the brain which was lying beside
the dead body has not been sent for postmortem examination but in the inquest
report, it is mentioned that part of the brain
is lying beside the dead body, so not
sending brain material with dead body for
post-mortem is nothing but latches on the
part of investigating officer. From the oral
evidence and other material on the record,
the place of occurrence is fully established
there is no doubt about this.

16. Learned counsel for the appellant
further contended that the motive attributed
is very weak and remote. There is no
immediate motive of the incident. Rajendra
Prasad PW-1 himself has said that
sometime his father used to plough a
portion of the field of the accused and some
times the accused used to plough the some
area of his plot. There is no evidence on
record to indicate that any such incident has
taken place on the day of occurrence or
soon before it, hence, no motive is
established from the material on record.
The motive as alleged in the F.I.R. is that
there
was
previous
enmity
between
deceased and the accused in respect of the
intervening boundary (mend) and Rajendra
Prasad
PW-1
has
corroborated
the
allegations of the F.I.R. and it is not
disputed that agricultural field of the
accused and the deceased are adjacent. As
the prosecution case is based on the direct
evidence, the motive is not so important. It
is settled principle of law that where eyewitness account is produced motive looses
its significance.

17. The learned A.G.A. contended
that after the occurrence the accused
606 INDIAN LAW REPORTS ALLAHABAD SERIES
absconded, he was not found at his house,
so under section 8 of the Evidence Act,
adverse inference will be drawn against
him that he is guilty. The learned counsel
for the appellants on the other hand
contended that the accused was not preset
at his home at the time of occurrence and
this fact has been stated by him in his
statement under Section 313 Cr.P.C. The
arguments of learned A.G.A. cannot be
accepted. The evidence on record indicates
that the place of occurrence is near the
house of the accused and accused was not
found at his house when the Investigating
Officer came after lodging of F.I.R. in the
noon of 27.01.1982. So it should have
come in the knowledge of the accused that
he has been named in the F.I.R., it was
natural on his part to leave his residence
and no adverse inference under Section 8 of
Evidence Act can be drawn for this conduct
of the accused.

18. The learned A.G.A. further
contended that the oral testimony of PW-1
is consistent throughout except on one
point when he has misread the direction of
west to east. Kishori Lal PW-2 has also
corroborated the oral testimony of PW-1
and there is no major discrepancy or
contradiction.
Medical
evidence
also
supports the ocular version. The oral
statement of PW-2 cannot be discarded
because he has some dispute with the
accused party. Learned counsel for the
appellant submitted that witnesses are
interested and inimical and both the
witnesses are chance witnesses. No other
witness of the vicinity has been named in
the F.I.R. nor produced in the Court. Their
presence on the spot is doubtful and they
are not reliable. The sanctity of F.I.R. is
also doubtful, there is no plausible
explanation for the delay in lodging the
F.I.R.. Time of occurrence is also doubtful
and the motive attributed is weak and
remote. The licensed gun has not been
recorded.

19. From the appreciation of the
evidence on record, it is clear that the two
witnesses examined by the prosecution as
eye-witness are not reliable, their presence
on the spot at the time of occurrence and
their seeing of occurrence is highly
doubtful. The time of the occurrence is also
doubtful and the possibility cannot be ruled
out that occurrence may have taken place
after the sunset in the darkness. The two
prosecution witnesses being interested and
inimical and also chance witnesses lack, the
credibility and cannot be relied. There are
shadows of doubts on the prosecution
evidence and from the appreciation of
evidence and entire material on record, it is
clear that case of the prosecution is not
stand proved beyond reasonable doubt. So
it will be just and proper to give the benefit
of doubt to the accused.

20. The learned Trial Court has failed
to
appreciate
the
evidence
in
right
perspective and finding of conviction
recorded by it is not just and liable to be set
aside.

21. Consequently, this Criminal
Appeal is allowed and the judgment and
order of conviction dated 25.11.1982
passed by the Vth Additional & Sessions
Judge, Allahabad is hereby set aside.
Accused Deo Narain Yadav is acquitted of
the charge under Section 302 I.P.C. The
applicant is on bail. His personal bonds and
sureties bonds stand cancelled, sureties
stand discharged. He need not surrender.

22. Lower court record along with
copy of the judgment be transmitted
immediately to the trial Court.
9 All Aidal Singh Vs. The State of U.P.
607
----------
(2021)09ILR A607
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.09.2021

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Appeal No.319 of 1985

Aidal Singh ...Appellant(In Jail)
Versus
The State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Pt. Mohan Chandra, Sri Rajesh Singh,
Sri Yogendra Misra, Sri Yogesh Kumar
Srivastava

Counsel for the Opposite Party:
D.G.A., A.G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Section Sections 147, 148, 149 &
302 - The Code of criminal procedure,
1973 - Section 161,313- appeal against
conviction

(P.W.-3) wife of complainant (PW-2) & daughter
of deceased - living in her Mayaka at the time
of murder of her father - Appellant no. 1(uncle
of PW-3) forbid, his brother to keep his
daughter and son-in-law in his house and
wanted to eliminate him - in the night at 12:00
p.m. - father of PW-3 sleeping under the
Chhappar of the house - (P.W.-3) sleeping
inside the house - appellant no. 2 fired a gun
shot on deceased with a country made pistol -
hit his left chest - fell down on the ground and
died - witnesses saw and identified the accused
in the light of Dibbi (kerosene lamp) - (P.W.-3)
came outside, her father was lying dead - Trial
court convicted accused appellant no. 1(died)
and appellant no. 2 for charge under section
302 only - Hence appeal.

HELD:-Incident has occurred in the night while
all were asleep and a single shot was fired by
someone who made good his escape from the
spot before anyone can notice the incident. Sole
testimony of complainant (P.W.-2) is not
reliable and there is no other witness to
corroborate his oral version. Trial court failed to
appreciate the evidence properly and the finding
of conviction recorded by it is not sustainable.
Conviction of the appellant no. 2 under Section
302 IPC and consequent sentence of rigorous
imprisonment is set aside.(Para - 16,17,18)

Criminal Appeal allowed.(E-7)

(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)

1. Heard Sri Y.K. Srivastava, learned
counsel for the appellants and Sri Devendra
Kumar Singh, learned AGA.

2. This criminal appeal has been filed
against the judgment and order dated
30.1.1985 passed by Vth Additional
Sessions Judge, Agra in Sessions Trial No.
348 of 1983 (State of U.P. Vs. Aidal Singh
& others), Case Crime No. 67, Police
Station - Tundla, District - Agra convicting
and sentencing the appellants Aidal Singh
and Ram Charan under Sections 302 IPC
for life imprisonment.

3. During pendency of this appeal, the
appellant no. 1, Aidal Singh has died.
Therefore, the appeal stands abated against
the appellant no. 1, Aidal Singh.

4. The prosecution case is that on
8.3.1983 at 9:15 a.m., complainant - Nathi
Lal son of Chiranji Lal gave an oral
information at police station - Tundla,
district - Agra that he is resident of village -
Garhi, police station - Tundla,. His sasural
is in the house of Jagjit son of Chetram,
resident of village Nagla Asha. Jagjit has
no other issue except his wife Bohri and
due to this, he along with his wife and
children are living with his father-in-law in